Yesterday my colleague Bruce Ackerman pointed out to me that if things continue to go as they have, President Bush is never likely to regain his popularity and his political capital; as a result, he has very little to lose if he engages in even greater risk taking behavior than he demonstrated in his first six years in office. If his gambles pay off, he regains some political capital; if they don't, he can't lose much more popularity than he already has. Moreover, even if the Democrats retake the House and Senate in 2006, the chances of impeaching him are slim and the chances of impeaching him *and* removing him from office are even slimmer.

It's true that a risk taking Bush might screw things up for the Republican Party for the next election cycle or two, but he has already done that quite nicely, thank you. Moreover, he has never been one to put the interests of other politicians ahead of his own, so why should he start now?

Throughout his Presidency Bush has shown a desire to engage in gambling and risk taking behavior. Now that he has gambled himself into a failed presidency, he may well decide that taking even greater risks has considerable upside and very little downside.

What kinds of risks might he be willing to take? Although I do not believe it will happen, the most obvious is a unilateral decision to bomb Iran. Many people think that this is a spectacularly bad idea. But look at it from the perspective of a failed Presidency with two and a half years to go. Right after the bombing starts, there's a good chance that many Americans will rally around the President. If Bush were to preemptively attack Iran, politicians of both parties will be placed in a difficult position. They might gamble that a public, tired of constant war, will react negatively to the strikes. But if they criticize the President without finding out whether the public supports what he is doing, they risk looking soft on national security and bucking a popular upsurge of support. Gambling and picking the wrong side has greater consequences for them than for Bush: They are facing reelection, while the President is not. Hence they will be tempted to take the safer route and support the President. If the expedition turns out badly, they can always criticize him later on. Indeed, if the President goes ahead and bombs Iran, we might see both John McCain and Hillary Clinton falling over themselves to see who can take the toughest stance. Several people have speculated that the President might bomb Iran before the 2006 elections in order to preserve a Republican Congress. The irony is that if the Democrats win one or more Houses, Presidential risk taking is even more likely. And remember, it does not have to be Iran. There are always plenty of other places where the President might think a little bombing might do some good.

But let's put Iran to one side. There are lots of other gambles that a failed President can take with very little downside risk. For example, with a Democratic controlled Congress, he can veto bills left and right (well, mostly from the right); it will be hard to override his veto. He can make more recess appointments. And he can try to stock the courts with even more strongly conservative judges. What does he care if the Democrats can block some of them? Finally, he can stop investigations in their tracks by withholding information on national security and executive privilege grounds, and he can prevent embarrassing criminal investigations by using his pardon power as his father did. He can become increasingly truculent and he can dare the House to impeach him and the Senate to remove him. I mean, what are the chances that two thirds of the Senate will vote to convict and remove? Not very great, even if the Democrats retake the Senate. And even if the risk is, say twenty percent, he might conclude that it's a gamble worth taking.

But, you may object, what about his legacy in history? Won't engaging in even greater risk taking damage what historians will say about him? Well Bush has every reason to believe that if he will be honored at all by later generations, it will be for pursuing aggressive policies following 9-11 that helped keep the country safe and prepared it for a long struggle against terrorism. He may well assume that he will be regarded retrospectively with the same degree of respect and warmth that Harry Truman received many years after he left office. Remember that Truman was also regarded as a stubborn man who got the country embroiled in a frustrating war overseas (Korea), and his approval ratings were just as low. Nevertheless, Truman was eventually remembered as the President who first formulated and implemented the successful policy of containment during the Cold War. In the same way, Bush might reason, he will be remembered not for deficit spending, Katrina and the Iraq debacle but for his policy of muscular responsiveness to the threat of Islamic terrorism, which later Presidents will adopt just as Truman's containment policies were adopted by Presidents of both parties during the Cold War.

And here's the kicker: Bush has every reason to think that the next series of Presidents, whoever they may be, will follow many of his policies in the War on Terror. As Sandy Levinson and I have explained, we are gradually moving from a National Security State to a National Surveillance State, with an increasingly powerful executive acting largely with the blessing of Congress. Given the changing nature of warfare and the threats America faces, we would have done so no matter who took office in 2000. The only difference between the two parties would have been how they finessed the issue of civil liberties, and it's important to remember that the Democrat Bill Clinton was not a great civil libertarian, particularly when it came to national security policy. There is little reason to think that someone like Al Gore or Hillary Clinton would make a fetish out of protecting civil liberties or reducing Presidential power once they took office.

Thus, Bush may reasonably conclude that he will be the Harry Truman of the early 21st century-- he made some mistakes, and he went overboard on civil liberties, but future Presidents will thank him for pushing the envelope on Presidential power because it cleared a wide space for them to use in their Administrations. Perhaps you imagine (or you hope) that future Presidents make it a point to reveal all the bad things that were done during the Bush Administration. You are wrong. Future Presidents will not waste much time or political capital trying to expose what Bush did while in office; quite the contrary, they may try to take advantage of the climate of secrecy and Presidential unilateralism that he created. After all blowing the whistle on what the previous Administration did makes it more difficult for them to do similar things in the future. (Moreover, if future Presidents appear to be even a little less aggressive than Bush, they will seem quite moderate in comparison.) If the various misdeeds of this Administration ever to come to light and come to justice, it will not be because later Presidents expose them out of the goodness of their hearts, but because Congress and the judiciary reassert themselves, and more people risk their careers by leaking information. Without such courage, much of what Bush and his subordinates did in the past several years will never be fully known, and Bush's reputation will be burnished by later Presidents following his example.

Now I don't actually believe that Bush is the second coming of Harry Truman-- I think that history will be far less kind. But from Bush's perspective, it's a plausible legacy to shoot for. If that's so, Bush has no incentive to admit any mistakes or to ask forgiveness for anything he's done in office. Indeed, he has every incentive to be just as risk taking, just as stubborn, and just as bull headed as he has been for the past six years, if not more so.

And that, I am afraid, does not bode well for the future of our country.

Superb post. I have hopes that next week will be a watershed moment and the polls which are always historically bent rather than current will demonstrate that America just reached her tipping point. At 29% America is rumbling her unease. Question is, will the rumble translate into a way to get Congress to curtail a Pres who is sending war ships toward Iran as we speak.

How's this for potential risk-taking behavior - try to extend your presidency beyond a second term if the next president seems likely to either undo all your good work in the name of a un-war on terrorism, or expose actions illegal enough to get you landed in jail after you leave office. All it would take is a sufficiently serious national emergency, assuming that republicans retain enough control of the legislative branch.

Although I personally think it an unlikely scenario, I also wouldn't rule it completely off the radar either.

George W's preparation for the presidency at Andover and Yale was majoring in cheerleading, a role that he continues to play. The cheerleader keeps up with the cheers even when his team is far behind, with no chance of winning. That is not being an idealist. And he is far from being a realist. But he's in charge and thinks he can do as he pleases. And now his parents want to extend the Bush dynasty with Jeb in 2008. Could all this be a case of child abuse?

"There is little reason to think that someone like Al Gore or Hillary Clinton would make a fetish out of protecting civil liberties or reducing Presidential power once they took office."

Indeed, there's absolutely no reason to believe it. In practice, Democrats are no better than Republicans on civil liberties. It's just that they engage in a lot of denial on the subject, defining away their civil liberties violations. Republicans seem more inclined to make excuses as to why the violations were justified, instead.

so ironic that Republicans were willing to impeach Mr. Clinton for lying to a grand jury, but are spineless in impeaching Mr. Bush for lying about WMDs, starting a war against a country not a threat to us, etc.

I tell you, if Gore were in office and doing these very things, Republicans would have impeached Gore back in 2003!

It's pretty clear to me that January 2008 is going to see a raft of pardons issued--given that pretty much the entire Executive Branch has been implicated in criminality of one sort or another, they'll need them.

Is there any way to put a stop to that?

Here's what I have in mind. Article II give the prez:

"Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

That clearly means that if the President is impeached, he cannot pardon himself prior to or after convictio. And it pretty clearly applies to the impeachment of a Justice.

But what if, say, the Secretary of Defense is named in an indictment that is central to the impeachment of the President? What if the AG is called as a witness in the impeachment of the President?

That is, how wide of a net does "except in cases of impeachment" create? If an administration figure commits an "offence against the United States", and that offense becomes part of a case for impeachment (part in any number of ways), is it then out of the reach of the power to pardon?

The current Iranian leadership has given all the evidence that any reasonabl person could want that they are not deterable. They are building nuclear weapons not to ensure regime or national survival (a la North Korea, South Africa, Israel, Pakistan) but in order to kill a lot of Jews.